Sumpton v R

1. [1]

   HOEBEN CJ at CL:

2. [2]

   The trial commenced with a voir dire between 7 and 10 October 2014 in relation to which judgment was delivered on 13 October 2014 (R v Sumpton [2014] NSWSC 1432). The trial proper commenced on 14 October 2014 and verdicts of guilty were delivered on 29 October 2014.

3. [3]

   The applicant was sentenced on 2 June 2015 as follows:

4. [4]

   The total effective sentence was imprisonment with a non-parole period of 20 years and 6 months commencing 24 May 2012 and expiring 23 November 2032 with a balance of term of 8 ½ years expiring 23 May 2041.

5. [5]

   The applicant has applied for leave to appeal against his convictions on the following grounds:

6. [6]

   The applicant has also applied for leave to appeal against sentence. I have read the judgment of Bellew J in relation to the application for leave to appeal against sentence. I agree with his Honour’s conclusions and with the orders that his Honour proposes.

7. [7]

   It was the Crown case that the offences occurred early on the morning of 18 May 2012. Police and fire-fighters attended a house fire at the home of Michelle Roberts (the deceased) in South Grafton. Inside the house, emergency workers discovered the body of the deceased. It was badly burnt. She was unrecognisable. The post mortem examination showed that she died as a result of multiple stab wounds and had injuries consistent with blunt force trauma.

8. [8]

   The examination of the scene by forensic officers and fire experts supported the conclusion that the fire was deliberately set. There were three separate “seats”, or points of origin, of the fire. One of those was on or under the body of the deceased.

9. [9]

   The applicant was outside the house of the deceased when emergency services arrived. He was behaving in a way that interfered with the efforts of the fire-fighters. His behaviour and the things that he said to police that morning caused suspicion to attach to him. In the days following the fire, he gave a series of interviews to police. He was arrested and charged on 24 May 2012. He has been in custody since then.

10. [10]

    The offender and the deceased met for the first time on 17 May 2012. They spent time together drinking. For part of the time they were accompanied by a mutual friend, Mr Schembri. Each was extremely intoxicated by the time of the murder. As well as drinking beer, the applicant obtained home made whisky from a friend. There was evidence that they had both taken some form of prescription drug, Valium or similar.

11. [11]

    They spent some time together in the deceased’s bedroom. The applicant had a sexual interest in the deceased and they engaged in sexual activity of an unknown kind in the bedroom. The applicant had an attraction to women of Asian appearance. The sexual activity was of a limited kind because the applicant suffered from a form of erectile dysfunction.

12. [12]

    The Crown was not able to adduce evidence as to what happened next. It may be that the deceased resisted the applicant’s sexual advances, or it may be that he had difficulty achieving an erection. The Crown accepted that these were matters of speculation. On the Crown case the applicant then inflicted a brutal and sexually charged attack on the deceased.

13. [13]

    The deceased was a slightly built woman (weighing 54kg) and had a pronounced limp. Her disability required her to use a walking stick. She was very intoxicated. She was vulnerable to the applicant’s violent attack. The applicant used two weapons in his attack on her. He used a statue, at least twice, to inflict significant blunt force trauma to her face. He used a knife to inflict a large number of wounds, including the fatal wound.

14. [14]

    A pathologist (Dr Beer) observed 24 stab wounds to the chest, abdomen and upper thigh area around the vagina. The wounds to the area of the vagina supported the inference that the murder had a significant sexual motivation. The wounds to the chest were likely to have caused death. In addition to the stab wounds, the deceased had a broken nose and a number of her teeth were dislodged at the roots. These injuries, along with evidence of blood spatter in the area of the murder, suggested that she was struck with significant force with an object. Dr Beer accepted that the broken statue found in the bedroom was likely to be that object and that the applicant used this statue to strike the deceased at least twice to the face.

15. [15]

    It was the Crown case that this was a spontaneous but brutal killing of a vulnerable woman in her own home. The killing was sexually motivated, although the precise nature of the motivation could not be determined. The Crown submitted that the most likely scenario was that the deceased rejected the applicant’s sexual advances or that the applicant had difficulty in performing sexually. It can be inferred from the scratches to the applicant’s back that the deceased put up a fight.

16. [16]

    The Crown submitted that the applicant then fled the scene and returned to his home. The enormity of what he had done began to dawn upon him. He returned to the scene and attempted to cover up his crime. He did this by setting fire to some sheets on or under the deceased’s body and set two other fires within her house. He burned his hands in doing this resulting in a blister on his right thumb. He then purported to raise the alarm, knocking on the door of some neighbours and saying that there was a fire in the house of his friend. He pretended to help the fire-fighters who came to the scene. On the Crown case, he was the “arsonist claiming to have discovered the fire; the killer hiding in full view”.

17. [17]

    The Crown characterised the events following the murder as follows: The applicant spoke to police on a number of occasions. He lied on a number of occasions. His lies were increasingly desperate and transparent. His conduct was theatrical and unconvincing. He showed no remorse for what he had done.

18. [18]

    The Crown case had three components to it. There was a confession to Andrew Hayes, a confession to Zac Sommers and a circumstantial case. The Crown submitted that the jury could look at each of those components separately but that there was an inter-relationship between all of them.

19. [19]

    Andrew Hayes was a Corrective Services Officer. He gave evidence that in May 2012 he was conducting intake screening questionnaires at the Grafton Correctional Centre for the purpose of assessing the immediate needs of inmates. The process involved asking a series of about 85 questions and normally took about 40 minutes.

20. [20]

    On 28 May 2012 at 1.20pm he commenced a screening assessment of the applicant. His assessment took one hour and 20 minutes.

21. [21]

    In the course of the questionnaire, the applicant told Mr Hayes in relation to the charge of murder that “He’d been drinking with the person, the deceased, pretty much all day at various locations, his place and also including the Good Intent Hotel. They left the Good Intent for another residence and he passed out. When he came to, he was covered in blood and the deceased was a mess”. In relation to the charge of damaging property by a fire, the applicant told Mr Hayes that “She was f-d and he rolled her in a mat or a blanket, like a floor mat, and set her, the mat and the house on fire; he had to get rid of the evidence or dispose of the evidence”. Mr Hayes said that the applicant said “Then I left and went home and then got home and thought “what have I done” and actually went back to the scene”.

22. [22]

    What the applicant said prompted Mr Hayes to immediately make a record outside of the questionnaire sheet in the form of a computerised note headed “Case Note Report” which he later provided to the police. Mr Hayes also made a call to Grafton Detectives and spoke to an officer. The police were unable to produce a record of this report and did not follow it up.

23. [23]

    Counsel for the applicant had the computerised note available to him when cross-examining Mr Hayes. Mr Hayes denied that he fabricated the admissions for the purpose of assisting the police. He denied that he had access to a police fact sheet outlining the allegations against the applicant, and that he had made up a story based on information it contained. Mr Hayes said “There was no fact sheet, there was a custody management record”.

24. [24]

    It was common ground that at no time on that day had the applicant been drinking with the deceased at the Good Intent Hotel. This was established by CCTV footage. The sequence of events described by Mr Hayes was different to that put forward by the Crown. The Crown case was a sequence of: the murder – leaving the house of the deceased and going home – returning later to light the fire. The admissions asserted by Mr Hayes were: the murder – lighting the fire – going home. It was no part of the Crown case that the applicant had “passed out”.

25. [25]

    Zac Sommers shared a cell with the applicant when he was held on remand at the Nowra Correctional Centre awaiting sentence for an offence of specially aggravated detain with intention to obtain an advantage. During that period the applicant spoke to Mr Sommers about the charge of murder against him. Mr Sommers wrote some notes about those conversations when they were fresh in his memory.

26. [26]

    Mr Sommers, reading from his notes, gave evidence that the applicant stated that:

27. [27]

    Mr Sommers passed the information which the applicant gave him to his own solicitors and asked them to contact the police dealing with his charges. Mr Sommers was sentenced for his crime on 31 May 2013. The sentence he received was reduced because of the assistance he gave to police in the investigation of the applicant. He agreed in cross-examination that his sentence was discounted by 30% overall, which included a discount of 10% for his plea of guilty. Mr Sommers acknowledged that he had signed an undertaking to give evidence in the applicant’s trial and that if he did not give the evidence he could be re-sentenced.

28. [28]

    Mr Sommers denied in cross-examination that one of the reasons he made this statement was so that he could get out of gaol early. Mr Sommers said “My reasons for giving evidence were strictly because of him doing what he had done and my wife being disabled … I may have suggested to my solicitor “Is there anything the police can do for me?” He agreed that while a reduction in his sentence was not one of his reasons for making the statement, “It’s one of the benefits”.

29. [29]

    Mr Sommers rejected the proposition that the applicant never told him anything about the matter he was charged with. He denied that he read the applicant’s paperwork in their cell. He said that he did not see any paperwork there. He agreed that he was allowed to return to his cell from the yard whenever he liked during the day, but denied that he returned to the cell to read the applicant’s papers.

30. [30]

    In the applicant’s case Christopher Hardy gave evidence that he shared a cell with Zac Sommers at the Parklea Correctional Centre for about two weeks. He said “Zac actually said to me that he was going Crown witness in a trial I knew nothing about and during that time he basically said that he was going to make up some stuff so he could get a lesser sentence on his time”. Mr Hardy also met the applicant while in prison. He had spoken to the applicant and his legal advisers. In cross-examination Mr Hardy agreed that he did not get on with Mr Sommers and did not like him. He denied that he had made up his evidence because of that dislike.

31. [31]

    In relation to the third component, i.e. the circumstantial case, the Crown relied upon 10 points. These were identified as follows:

    1. (1)

       The DNA and blood on the applicant’s right shoe.

    2. (2)

       DNA matching that of the applicant under the fingernails of the deceased.

    3. (3)

       The scratch-marks on the applicant’s torso.

    4. (4)

       The applicant’s approach to Mr Ohlsen.

    5. (5)

       The applicant’s lies about the clothing he was wearing on the night.

    6. (6)

       The applicant’s lie about the pink bag containing the bottle of whisky.

    7. (7)

       The applicant’s emotional state in the days after the deceased’s death.

    8. (8)

       The applicant’s sexual interest in Asian women.

    9. (9)

       The inherently incredible explanation for the applicant being outside the deceased house at 2am in the morning.

    10. (10)

        The blister on the applicant’s thumb.

32. [32]

    The Crown expanded on those matters. There was no challenge to the proposition that it was blood on his right shoe. The most likely source of that blood was the deceased. This was because the deceased’s DNA was extracted from four positions on the applicant’s shoes. One of those locations was on the instep of the shoe.

33. [33]

    A DNA profile matching that of the applicant was found under two of the fingernails on the right hand of the deceased. It was the Crown case that those fingers formed a close match to the scratch-marks on the applicant’s back shown in photographs taken shortly after the deceased’s death. The explanation for why there was not more DNA of the applicant under her nails if he had killed the deceased, was that her DNA would have overwhelmed other DNA. It was significant that the DNA was under the nails on her right hand and the scratches were on the applicant’s left side where one would expect them to be if the deceased was resisting an attack.

34. [34]

    The Crown challenged the different explanations for the scratches which the applicant had put forward over time. Initially, he said that Darius Ohlsen had told him that he had fallen down stairs. Later he said that he had fallen into some bushes and hit his mailbox. He relied on Darius Ohlsen’s assertion that he had fallen off one his chairs. By the time the applicant gave evidence at trial, his explanation was that he had fallen into hibiscus bushes.

35. [35]

    Mr Ohlsen gave evidence that the applicant approached him to confirm that he (the applicant) had inadvertently touched the hot water system which caused the blister to his thumb and that Mr Ohlsen had seen this incident occur. Mr Ohlsen told the applicant that he was not going to lie for him, even though he was sympathetic to his situation.

36. [36]

    The Crown relied upon what it asserted was a lie which the applicant told the police about the clothing he was wearing on 17 May so as to enable him to wash that clothing before the police could examine it.

37. [37]

    The applicant told the police when asked on 18 May 2012 that he was wearing long jeans, shirt and joggers. This was in conflict with the evidence of Lisa Westley and Yarnah Cook, who said that the applicant was wearing football shorts that evening The important point from the Crown point of view was their observation that he was wearing shorts and not jeans, even though their description of the colour of the shorts was different. Both were definite under cross-examination that he was wearing shorts and not jeans. It was the Crown case that the applicant told a lie about what he was wearing to prevent the police taking possession of his clothing and testing it.

38. [38]

    It was the Crown case that Detective Sippel on the morning of 18 May asked the applicant whether he knew anything about a pink bag containing the bottle of whisky, which was found on the front steps of the deceased’s house. The applicant’s response was “No, I don’t know anything”. In a statement made some days later, the applicant admitted that he did know about the pink bag containing the whisky. He had used the bag to carry home-brew whisky which he had obtained from a Mr Johnson. It was the Crown submission that the lie was told on the morning following the murder because at that time the applicant had no explanation for why the bag was on the porch of the deceased’s house. The Crown submitted that there was a further lie, that the applicant and the deceased had been drinking beer and that the applicant had taken the empty beer bottles with him when he left her house.

39. [39]

    The Crown relied upon the emotional state of the applicant in the days following the murder. That evidence was all one way, i.e. that the applicant was in a state of high anxiety on 18 May and on the days following. This evidence came from Detectives Burke and Sippel, from William Smith, Darius Ohlsen and the applicant’s landlady, Ms Hayes. The Crown submitted that the reason for this state of anxiety was that the applicant feared that the police investigation was getting close to discovering that he was the killer. The applicant’s injuries were photographed on 18 May, on 19 May his joggers were taken for examination and on the same day police returned to measure his injuries.

40. [40]

    The evidence of Darius Ohlsen was that by the evening of 19 May the applicant had become very anxious and was threatening self-harm and to kill himself. Mr Ohlsen was so worried that he called an ambulance. When he arrived at hospital, the applicant complained to staff that the police had taken his shoes. It was the Crown case that the extent of the applicant’s reaction was not due to grief for the death of the deceased (a person he had met only the day before) but because of fear of the police investigation. It was common ground that six days after the murder, he still did not know the name of the deceased.

41. [41]

    The Crown relied upon tendency evidence that the applicant had a sexual interest in Asian women. The Crown relied upon two sources for that proposition. There was evidence from Darius Ohlsen and from the applicant’s ex partner. The evidence was that the applicant used to watch a lot of Asian pornography and had access to a substantial collection of it. On one occasion he had gone to Newcastle and picked up a prostitute who was Asian. The significance of this evidence was that if the applicant had a sexual interest in Asian women and thought that the deceased was an Asian woman, in combination with other matters, it made it more likely that he would have made a sexual approach to her. This was against the background that there was a clear sexual element associated with the death of the deceased.

42. [42]

    The Crown also relied upon the evidence of Mr Johnson (from whom the applicant had obtained the homemade whisky) to the effect that the applicant told him that he hoped to have a successful sexual encounter later that day. The Crown relied upon the fact that despite his sexual dysfunction, the applicant still had sexual urges and sexual appetites. The Crown relied upon the evidence of the applicant’s former partner on that issue.

43. [43]

    The Crown submitted that the reason given by the applicant for being in the vicinity of the fire and the deceased’s house at 2am was inherently improbable. The applicant’s explanation was that he happened to be there because he was on his way to check on Mr Schembri. He had taken Mr Schembri home earlier in the day because of his advanced state of intoxication. The Crown submitted that it was extraordinary that the applicant would decide to act in that way for the first time in their friendship and at a time when the applicant himself was heavily affected by alcohol.

44. [44]

    The Crown submitted that it was “even more extraordinary” that having taken the trouble to check on Mr Schembri, when he arrived at his house, the only comment he made was “You’ve got my key” (which was not so since the key was in the applicant’s own door).

45. [45]

    The final part of the Crown’s circumstantial case related to the blister on the applicant’s thumb. The Crown submitted that there was no doubt that the blister on the thumb showed a connection with the fire. The only issue was whether the connection was a “guilty one”. It was the applicant’s evidence that when he tried to open the screen door of the deceased’s house he burned himself and got the blister. The applicant demonstrated how he had tried to open the door when the house was on fire.

46. [46]

    The Crown queried the unconvincing nature of the demonstration and submitted that the most likely explanation for the blister was the applicant’s repeated attempts with a cigarette lighter to light something in the deceased’s house, i.e. the clothes, the books and the lounge suite, all of which had been set alight.

47. [47]

    The applicant gave evidence at trial. He denied that he was guilty of any of the counts in the indictment. When he took Mr Schembri home, he was wearing dark long jeans. He socialised and drank with the deceased and when he left her, she was unharmed. He did not harm her and did not cause the fire. He went home for a period of time, then went back to check on Mr Schembri.

48. [48]

    The applicant agreed that he had been somewhat inconsistent in some of the things which he had told the police. He agreed that he had not been drinking beer, either with Mr Schembri or with the deceased, but had been drinking whisky. He said that he was simply mistaken when he told the police that he had been drinking beer. He said that he co-operated with the police and spoke to them whenever they requested an interview. He accepted that he did not have a particularly good memory.

49. [49]

    The applicant said that on an earlier occasion in his life, he had been involved with a fire in a place where he was living. The fire was caused by an electrical fault. At the time the applicant believed (wrongly) that his partner and stepchildren were in the house and it was a traumatic event for him. There was another occasion when the applicant saw a man douse himself and set himself on fire. He tried to assist that man but despite his assistance, the man lost his life. The applicant said that the fire on this occasion brought back memories of those earlier events and this was why he was so anxious and upset.

50. [50]

    In his address to the jury, counsel for the applicant accepted that the person who caused the fire was the same person who had committed the murder. He relied upon the evidence of Mr Ohlsen, Inspector White and Detective Sippel to establish that the applicant could not have been responsible for the fire. The submission was put in this way: The latest time the fire could have been set was 2.05am on 18 May (the evidence of Inspector White). Mr Ohlsen had the applicant leaving his unit at 2.01am. Detective Sippel estimated that it took about 10 minutes to walk from the applicant’s unit to the deceased’s house. By reference to that evidence, the earliest time at which the applicant could have been on the scene was 2.10am but by that time (relying upon the evidence of Inspector White) the fire had already been going for at least five minutes. It followed that if the applicant did not start the fire, he was not the murderer. This was referred to at trial as the “alibi”.

51. [51]

    Counsel for the applicant submitted that the evidence of Mr Hayes concerning the confession should be disregarded. He submitted that if the applicant had genuinely made a confession to Mr Hayes, he would not have got two important pieces of information wrong, i.e. the sequence of events and the assertion that he had passed out (which the applicant denied). Counsel for the applicant submitted that it was extraordinary that if Mr Hayes had reported the matter to police, it was not followed up by them. He submitted that confessions of this kind were easy to allege but difficult to disprove and that in this case the evidence of Mr Hayes was a fabrication.

52. [52]

    Counsel for the applicant challenged the evidence of Mr Sommers on the basis that he had a clear motivation to lie and that he had access to the applicant’s papers while sharing a cell which would explain the detailed nature of the evidence which he gave. Counsel referred to the history of alcohol and drug abuse by Mr Sommers. He reminded the jury that the evidence of Mr Sommers had been challenged by that of Mr Hardy.

53. [53]

    Counsel for the applicant submitted that the DNA evidence and the evidence of blood on the shoes, could be explained by there being blood in the long grass surrounding the deceased’s house and the applicant walking through that grass in order to get to the door of the house which he tried to open and in the course of which he received the blister on his thumb.

54. [54]

    Counsel for the applicant submitted that the finding of his DNA under the deceased’s fingernails could be readily explained by secondary transfer if they had been kissing and cuddling.

55. [55]

    Counsel for the applicant relied upon his evidence to explain the scratches on his back, i.e. that he had been gurneying the concrete areas around his apartment and had had some interaction with hibiscus bushes. He had subsequently been told by Mr Ohlsen that he had fallen off a chair. The applicant did not actually remember falling off the chair. Counsel for the applicant dismissed the tendency evidence suggesting that he had an interest in Asian women. He submitted that the basis for that was weak and that the viewing of cheap Asian pornography and the use of an Asian prostitute were very poor indicators of such an interest. He agreed that the deceased was a person of Asian appearance.

56. [56]

    In cross-examination and in addresses, counsel for the applicant suggested that the deceased’s boyfriend may have arranged for her to be killed. Counsel accepted that the boyfriend could not himself have murdered the deceased since there was unchallenged evidence that he was at the MacLean Hospital from 1.38 to 3.26am on 18 May. Counsel submitted that the boyfriend and the deceased had a turbulent relationship and his presence at the MacLean Hospital did not exclude him having arranged for somebody else to kill the deceased.

57. [57]

    The basis for this ground of appeal was the applicant’s submission that the case against him involved “links in the chain” of circumstantial evidence, in addition to the ten “strands in a cable” approach identified by the Crown. The applicant relied upon the observations of Dawson J in Shepherd v R [1990] HCA 56; 170 CLR 573 at [5]:

58. [58]

    The applicant submitted that this was one of those cases where a “links in a chain” direction should have been given and his Honour ought to have directed that some individual items of evidence needed to be proved beyond reasonable doubt.

59. [59]

    The applicant submitted that the following matters needed to be proved beyond reasonable doubt and his Honour should have directed the jury to that effect:

    1. (1)

       That the fire happened over an hour after the killing.

    2. (2)

       That the same person did both.

    3. (3)

       That the admission to Mr Hayes as to the sequence of events was wrong.

    4. (4)

       That the admission to Mr Hayes as to blacking out was factually wrong for otherwise it would support a defence of automatism.

    5. (5)

       That the alibi established through the Crown evidence was wrong.

60. [60]

    Rule 4 of the Criminal Appeal Rules applies to this ground of appeal. This submission was not raised at trial. Leave to rely upon it is required.

61. [61]

    Most importantly, it was accepted by both sides that this was not a “links in a chain” case. The trial was not run on that basis. During the course of the trial, the following exchange occurred:

62. [62]

    With respect to Mr Hayes’ evidence, his Honour provided a proposed (oral) direction to the parties (T.867 – MFI 24). Mr Dennis (who was the applicant’s counsel at trial) submitted that not only was the “admission” to having gone to the Good Intent Hotel with Mr Schembri and the deceased objectively untrue, so too was the proffered order of events: the victim was stabbed, the applicant then lit the fire and then went home (T.869 – 870).

63. [63]

    His Honour asked “Who’s to say that’s objectively untrue?” The basis for that question was that there was objective evidence that the part of the confession to Mr Hayes about the applicant going to the Good Intent Hotel was false because of the CCTV footage, but there was no evidence as to the other matters and in particular as to when the stabbing happened relative to the fire, except that it had occurred before the fire. Accordingly, although it was the Crown case theory that the order of events was the applicant stabbed the victim, then went home, then returned and lit the fire, as Mr Dennis ultimately agreed (T.869) there was no objective evidence as to exactly when the stabbing occurred. At T.871 Mr Dennis accepted that the direction in MFI 24 would remain unchanged but that he would address on the issue.

64. [64]

    The proposed direction, MFI 24, was in the following terms:

65. [65]

    When the trial was so clearly run on a “strands in a cable” basis, with the agreement of both sides, it is not open to the applicant on appeal to submit that it could or even should have been run on a different basis. In any event, leaving aside the “alibi” issue, there was no requirement as a matter of law for the other four matters identified by the applicant to be proved beyond reasonable doubt. This was because two of the matters were agreed and not in issue and the other two matters could have been found in favour of the applicant without greatly weakening the Crown case.

66. [66]

    It was accepted by the parties that the fire happened after the killing but that there was no clear evidence as to how long after. Leaving aside the “alibi” issue, it did not matter how long afterwards. It was agreed by the parties and was an important part of the applicant’s “alibi” submission that the killer was also the arsonist. If there were any doubt on this issue, it was settled by his Honour in the summing up as follows:

67. [67]

    It was open to the jury to find that some of the admissions to Mr Hayes, if they were in fact made, could have been factually incorrect without affecting the truthfulness or reliability of the others. Mr Hayes might simply have got the fire and the return to the victim’s home in the wrong order. So might the applicant for whatever reason. It might have been the correct order of events. The applicant might have been told by Mr Schembri that he and the deceased had gone to the Good Intent Hotel and woven that into his story to Mr Hayes, again for whatever reason. Or Mr Hayes may have been mistaken about it. Certainly the evidence was that Mr Schembri had stopped at the applicant’s premises when he was on his way to the Good Intent Hotel to meet the deceased.

68. [68]

    There was never any suggestion that proof of the Crown’s case of murder and arson depended on the jury accepting any or all of the admissions to Mr Hayes. The jury were entitled to accept some of Mr Hayes’ evidence and reject other parts of it without in any way impinging on the truthfulness and reliability of the balance of the Crown case, depending as it did on the evidence of Mr Sommers and the 10 matters in its circumstantial case.

69. [69]

    The asserted admission by the applicant that he blacked out and woke up to the find the victim in a mess and him covered in blood, was denied by the applicant. He said “It never happened”. It was no part of the Crown case that this had happened. Accordingly, there was no basis for any speculation that the applicant acted under the effects of sane automatism. It certainly was not a matter which the Crown was required to even address, let alone negative beyond reasonable doubt.

70. [70]

    This ground of appeal has not been made out and I would not grant leave to rely upon it.

71. [71]

    Rule 4 applies to this ground of appeal and leave to rely upon it is required.

72. [72]

    The “alibi” issue was raised at a relatively late stage in the trial and was foreshadowed by counsel for the applicant as follows:

73. [73]

    It was not submitted at trial by counsel for the applicant that the Crown had to negative the alibi issue beyond reasonable doubt. The way in which the submission was put was that the Crown had to establish the elements of the offences beyond reasonable doubt and that on the evidence of the timings of the applicant’s movements and the timings relating to the fire, he could not have been the arsonist and if he were not the arsonist, then the Crown had failed to prove beyond reasonable doubt that he was the murderer.

74. [74]

    In the summing up his Honour put the matter as follows:

75. [75]

    The applicant submitted that the jury ought to have been directed that the prosecution needed to negative the “alibi” evidence beyond reasonable doubt. He submitted that as a matter of fact the “alibi” arising from the Crown evidence had not been negatived beyond reasonable doubt so that if it be accepted that the same person committed the murder as committed the arson, it could not have been him.

76. [76]

    As part of that submission, the applicant relied upon the following extract from the plurality in M v R [1994] HCA 63; 181 CLR 487 where their Honours (Mason CJ, Deane, Dawson and Toohey JJ) said:

77. [77]

    The applicant submitted that the evidence to support an “alibi” was led through the Crown, i.e. Mr Ohlsen, Detective Sippel and Fire Inspector White. The effect of that evidence has already been set out. The applicant submitted that a reasonable interpretation of that evidence is that he could not have been the arsonist. He submitted that because of his advanced state of intoxication, it was unlikely that he would have been able to run from his unit to the deceased’s house. This taken with the clock melting at approximately 2am, and the estimate given by Fire Inspector White, suggested that the fire was lit closer to 1.55am than later. The applicant submitted that this evidence gave rise to a reasonable doubt as to him being the arsonist and therefore raised a reasonable doubt as to him being the murderer.

78. [78]

    This ground of appeal demonstrates the dangers of using a term of art such as “alibi” in a shorthand way. The evidence relied upon by the applicant was not “alibi” evidence. It was, as his Honour described it in his summing up, evidence which, if it were accurate and had the precision asserted by the applicant, could raise a reasonable doubt in the minds of the jury. The Crown submitted that the evidence relied upon by the applicant did not reach that standard in that it’s effect had been overstated and it lacked the precision necessary to give rise to a reasonable doubt as to the applicant’s guilt. The Crown submitted that this was particularly so when one had regard to the three elements of the Crown case against the applicant. In those circumstances, it was not the sort of “cast iron” alibi which required the Crown to negative it beyond reasonable doubt, for the jury to convict.

79. [79]

    I agree with that assessment by the Crown. An examination of the relevant evidence supports the Crown’s submission. The evidence lacked the precision necessary to give it the force relied upon by the applicant. For example, the only firm timings we have are that the triple 0 call was received at 2.15am, the fire officer received the alert to the fire at 2.17am and the firemen arrived at the scene at 2.27am. All other timings are estimates at best. That is not good enough to establish the applicant’s “alibi”. This is because a difference of only a few minutes would be sufficient to remove the basis for the “alibi” submission.

80. [80]

    The evidence of Mr Ohlsen was:

81. [81]

    Inspector White gave this evidence:

82. [82]

    Detective Sippel in cross-examination said:

83. [83]

    Ms Lambie gave evidence that the applicant knocked on her door at about 2.05am and said to her “There’s a lady across the road in the house and it’s on fire. Can you ring the fire brigade?” He asked to come in but Ms Lambie told him to go away. He said “Well ring the fire brigade” and he went back across the road. Ms Lambie said “… we left it at that stage and I rang the fire brigade and then he sort of came back a couple of minutes of later, was a little bit more upset, sort of hysterical. …” (T.359.32 - .47)

84. [84]

    The difficulty with that evidence is obvious. Mr Ohlsen was relying upon his recollection of the timings which he observed on Facebook, when he heard the sound of the applicant leaving his unit. We do not know how quickly the applicant moved between his residence and that of the deceased. Most importantly, the estimates of times by Inspector White must be very approximate, given that he did not know how long it took for the arsonist to light the three fires and the rate at which the fires progressed. This is despite his undoubted experience as a fire inspector.

85. [85]

    Inspector White appears to have placed considerable reliance on the melted clock for his estimate but it provides a weak basis for any such calculation of time. The photograph of the clock, Exhibit QQ, makes it clear that the estimate of 2 o’clock was very much an approximation. Speaking for myself, I have had considerable difficulty in making that observation. One would have needed to make measurements which Inspector White does not seem to have done. There are other difficulties with making an estimation based on the partially melted clock. It is not known where the clock was at the time of the fire. It is not known how long it took the fire to melt the clock to the extent that is shown in Exhibit QQ and it is not known whether the clock was showing the correct time, was fast or was slow at the time of the fire.

86. [86]

    It is clear from that review of the evidence that it was not of a quality as would give rise to an “alibi” so as to require the Crown to negative it beyond reasonable doubt. It is clear that the jury, as they were entitled to do, did not accept that evidence of this kind gave to the applicant an alibi in the true sense of the word and it did not give rise to a reasonable doubt as to the identity of the arsonist.

87. [87]

    On this issue, the recent statement of this Court in Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 at [350] – [351] is apposite:

88. [88]

    Applying those principles to the evidence of the “alibi”, it is clear that it was open to the jury to be satisfied beyond reasonable doubt as to the applicant’s guilt and that evidence of the kind reviewed above was not capable of and did not raise a reasonable doubt which should have prevented the jury reaching that conclusion.

89. [89]

    I would grant leave to rely on this ground but would dismiss it.

90. [90]

    The tendency notice, the subject of this ground of appeal, identified the relevant tendency as “to have a particular state of mind namely a sexual interest in women of Asian appearance”. The admission of that evidence was objected to and was the subject of a judgment delivered by his Honour on 21 October 2014.

91. [91]

    In the course of that judgment, his Honour said:

92. [92]

    The evidence that the murder had a sexual motive or connotation of some kind was strong. It included the fact that when the victim’s charred remains were found she was naked, except for a pair of underpants which were around her knees, and that of the 24 stab wounds inflicted to her, six were in the upper thigh and peri-vulval region. There was evidence that the deceased visited a neighbour’s house wearing lace lingerie a short time before she was murdered. The evidence established that the applicant and the victim were together in the hours leading up to her death.

93. [93]

    The evidence as to the tendency, which was admitted by his Honour, came from two sources. The first was the applicant’s former partner to the effect that they used to watch lots of pornography, but particularly Asian. The applicant owned a number of Asian pornographic DVDs and they were the ones that he was particularly interested in.

94. [94]

    The second source for the tendency evidence was Mr Ohlsen. He said that the applicant told him of an occasion in Newcastle when he took a taxi to where the hookers were and picked an Asian prostitute.

95. [95]

    His Honour concluded that this evidence had significant probative value and that the significant probative value outweighed any prejudicial effect arising from the fact that he had watched pornography and on one occasion used a prostitute. It was common ground that the deceased was a person of Asian appearance and this is confirmed by the photograph, Exhibit RR. There was other evidence, said by the Crown to support the relevant tendency, but this was rejected by his Honour.

96. [96]

    The applicant submitted that the tendency relied upon by the Crown was too general to have significant probative value. The applicant submitted that the tendency evidence did not specify the nature of the sexual interest. He submitted that watching pornography did not of itself demonstrate that a person would “act out” what is depicted. He submitted that contact with a single Asian prostitute did not establish, nor contribute to the establishment of, the asserted tendency. The applicant submitted that the evidence was never precise enough, nor of sufficient strength to be admitted and failed the test set out by s 101 of the Evidence Act 1995 (NSW).

97. [97]

    When giving judgment in relation to the tendency evidence, his Honour gave full effect to ss 97 and 101 of the Act. The relevant question is whether the admission of the evidence caused a miscarriage of justice. There was no complaint at trial about his Honour’s directions on the tendency evidence.

98. [98]

    In his directions, his Honour was careful not to overstate the effect of the evidence or go beyond its limited nature. The relevant direction was:

99. [99]

    No error has been identified in either his Honour’s approach to the admission of the evidence nor in his Honour’s summing up. On the contrary, not only was the summing up on this issue balanced, it was if anything weighted somewhat towards the applicant.

100. [100]

     This ground of appeal should be dismissed.

101. [101]

     The applicant in oral submissions on the hearing of the appeal explained this ground as follows:

102. [102]

     Put another way, the applicant’s complaint is that even if the jury rejected his challenge to the evidence of Messrs Hayes and Sommers, i.e. that they had a motive to lie, the jury still had to be positively satisfied that what Messrs Hayes and Sommers were saying was true, i.e. the mere rejection of the motive to lie challenge to their evidence did not mean that automatically that evidence should be accepted. The applicant submitted that there needed to be a strong and clear direction from his Honour to that effect.

103. [103]

     In order to assess the validity of that submission it is necessary to see what directions his Honour did give.

104. [104]

     His Honour said:

105. [105]

     As can be seen from the above extract from his Honour’s summing up, apart from the repeated warnings there are two clear directions that, regardless of the motive to lie elements, the jury had to be positively satisfied as to the fact of the admissions and their truth if they are to rely upon them.

106. [106]

     His Honour approached the evidence of Mr Sommers in a similar way:

107. [107]

     His Honour again reviewed the evidence of Mr Hayes and why the Crown submitted that it should be accepted at SU 47.7 – 48.7. This was not in the context of a motivation to lie, but why the Crown submitted that his evidence should be accepted.

108. [108]

     In relation to Zac Sommers, his Honour said:

109. [109]

     From the directions of his Honour the jury could have been in no doubt that even if they rejected the defence submission that both Messrs Hayes and Sommers had motives to lie, they still had to be positively satisfied as to the fact of the admissions and their truth before they could rely upon that evidence to determine the guilt or otherwise of the applicant.

110. [110]

     This ground of appeal has not been made out. I would refuse leave to rely upon this ground of appeal.

111. [111]

     Accordingly, the orders which I propose are:

     1. (1)

        Leave to rely upon Grounds 1 and 4 is refused.

     2. (2)

        Leave to rely upon Ground 2 is granted but the appeal in relation to Ground 2 is dismissed.

     3. (3)

        The appeal in relation to Ground 3 is dismissed.

112. [112]

     HALL J: I agree with the reasons given and the orders proposed by Hoeben CJ at CL. On the application for leave to appeal against sentence, I agree with the reasons given and the orders proposed by Bellew J.

113. [113]

     BELLEW J: I have had the advantage of reading in draft the judgment of Hoeben CJ at CL in respect of the applicant’s appeal against conviction. I agree with the orders his Honour proposes.

114. [114]

     The application for leave to appeal against sentence

115. [115]

     Hoeben CJ at CL has set out (at [3]-[4] above) the sentence imposed upon the applicant. I turn to consider the grounds relied upon by the applicant in support of his application for leave to appeal against sentence.

Ground 1 – The sentencing proceedings miscarried because of the inability of the learned sentencing judge to consider the contents of a psychiatric report of Dr Olav Nielssen dated 28 February 2016 (sic).

1. [116]

   Counsel for the applicant read the affidavit of the applicant’s solicitor, Kevin McMaster Rodgers, of 13 April 2016 in support of this ground. That affidavit annexed a report of Dr Nielssen, psychiatrist, of 28 February 2015. The Crown read the affidavits of Alexander Harmstorf (the applicant’s previous solicitor) of 22 July 2016 and Mark Dennis (trial counsel) of 20 July 2016. The affidavits of Mr Harmstorf and Mr Dennis explained the circumstances in which a decision was made not to tender the report of Dr Nielssen in the applicant’s sentence proceedings.

Submissions of the applicant

1. [117]

   Counsel for the applicant pointed to the fact that Dr Nielssen had diagnosed the applicant as suffering from a probable alcohol related brain injury of a kind which typically affects the frontal lobe of the brain (being that part of the brain which plays a part in the exercise of a person’s judgment). Counsel also pointed to the fact that Dr Nielssen had expressed the view that the presence of underlying alcohol related brain damage of that kind would likely have resulted in the applicant having a lower than normal tolerance to the disinhibiting effect of intoxication.

2. [118]

   It was submitted that in light of these opinions, his Honour was “dealing with an offender with brain damage which may reasonably be supposed to have impacted on the offence committed”. This, it was submitted, was a factor that his Honour would properly have taken into account had he known of its existence.

3. [119]

   Counsel for the applicant submitted that the circumstances surrounding the reasons why Dr Nielssen’s report was not before his Honour were exceptional. However, he accepted that in circumstances where no ground asserting incompetence of trial counsel was brought, it was necessary, in order to succeed on this ground, to establish that a miscarriage of justice had occurred.

Submissions of the Crown

1. [120]

   The Crown pointed out that the report of Dr Nielssen was available at the time of the sentence proceedings, and was therefore not fresh evidence. It was submitted that no miscarriage of justice had been established, for the simple reason that it was apparent from the affidavit material (particularly that of Mr Dennis) that the applicant’s then legal representatives had a number of legitimate concerns arising from other observations made by Dr Nielssen in his report, and had made a forensic decision, in accordance with the applicant’s instructions, not to tender the report on sentence.

Consideration

1. [121]

   The submissions of counsel for the applicant in respect of this ground proceeded on something of a false premise, namely that his Honour was dealing with an offender with brain damage “which may reasonably be supposed to have impacted on the offence committed”. Dr Nielssen in fact expressed no view as to any causal connection between the diagnosed brain damage, and the commission of any of the offences by the applicant.

2. [122]

   Moreover, this is a court of error. It is not a forum for the revision and reformulation of the case presented at first instance: Pym v R [2014] NSWCCA 182 at [75] per Fullerton J (Hoeben CJ at CL and Price J agreeing), citing Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[81] per Johnson J (McClellan CJ at CL and Rothman J agreeing). Although it is open to this Court to correct a miscarriage of justice, or a serious injustice, in cases where relevant material has not been relied upon at first instance, such instances are rare. The asserted miscarriage must be clear: Zreika (supra) at [82] per Johnson J.

3. [123]

   In the present case, and even without reference to any of the affidavit material, it is plain to see why a decision was taken not to tender Dr Nielssen’s report on sentence. In particular, one of the conclusions open from Dr Nielssen’s report was that in the event that the applicant did not remain abstinent from alcohol, he would present a risk of reoffending, in circumstances where it appeared that the applicant himself saw no real issue about his alcohol intake. In those circumstances, it is perfectly understandable why the applicant’s representatives determined that the report should not be tendered.

4. [124]

   No miscarriage of justice has been established. This ground is not made out.

The reasons of the sentencing judge

1. [125]

   Commencing at [12] his Honour set out the facts of the applicant’s offending before turning to consider (at [22]) its objective seriousness. Whilst his Honour expressly rejected the Crown’s submission that this was a case which approached the worst category offending, he concluded (at [22]) that the offending lay “comfortably above the middle range of objective seriousness”.

2. [126]

   His Honour found (at [17]) that the deceased was vulnerable and that the applicant used two weapons in his attack upon her. In particular, he said:

3. [127]

   His Honour then said (commencing at [23]):

4. [128]

   His Honour then proceeded to consider the fact that the offending took place in the deceased’s home. He noted (at [27]) that the question of whether that was an aggravating circumstance was “a matter of controversy”. He concluded (at [31]):

5. [129]

   His Honour then considered (commencing at [32]) the question of whether the mutilation of the deceased’s corpse was properly regarded as an aggravating factor. Having summarised the respective positions of the parties as to that issue, his Honour concluded (at [33]):

6. [130]

   His Honour then concluded (at [34]) that the offence of murder fell “comfortably above the middle range of objective seriousness”.

7. [131]

   Commencing at [36] his Honour dealt at length with the harm done to the deceased’s family. Having done so, he concluded (at [43]-[44]):

Submissions of the applicant

1. [132]

   Counsel for the applicant advanced five separate submissions in support of this ground.

2. [133]

   Firstly, he submitted that although there was evidence that the deceased had a slight build and walked with a limp, and assuming that it was these factors which led his Honour to conclude that she was vulnerable, there was no evidence to support the conclusion that any such vulnerability contributed to her death. It was submitted that in these circumstances, any vulnerability from which the deceased may have suffered at the time of her death ought to have been “a neutral sentencing factor”. Counsel referred extensively to the evidence given by Dr Beer at the trial regarding the cause of death, and submitted that the blunt force trauma to the deceased’s face could have equally affected a person who was sober, who walked without a limp, and who was of a heavier build.

3. [134]

   Secondly, and accepting (as his Honour did at [23]) that the applicant “lost control in the circumstances that developed that night”, counsel submitted that the number of weapons used by the applicant added nothing to the objective seriousness of the offending.

4. [135]

   The third submission advanced by counsel for the applicant arose from his Honour’s findings (at [31]) that the deceased was entitled to feel safe, and to be safe, in her own home. It was submitted that there was no basis for those factors to be taken into account in assessing the objective seriousness of the offending, absent the application of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”). It was further submitted that the reference, by the sentencing judge, to the deceased being unlikely to be able to flee the attack (at [31]) similarly did not lend any weight to the objective seriousness of the offending, in circumstances where there was no evidence that the deceased was killed in the course of trying to run away.

5. [136]

   Fourthly, counsel for the applicant submitted that notwithstanding the concession made by counsel who appeared on sentence that the mistreatment of the victim’s corpse increased the objective seriousness of the offending, there was no evidence that the applicant had desecrated the body of the deceased for any emotional, vengeful, or ritualistic purpose. It was submitted that in these circumstances, the damage to the deceased should not have increased the objective seriousness of the offending because it was a matter which was “well dealt with in relation to the sentencing for arson”.

6. [137]

   Finally, counsel drew attention to the provisions of s. 28(4) of the Sentencing Act:

7. [138]

   (4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim’s death on the members of the primary victim’s immediate family is an aspect of harm done to the community.

8. [139]

   It was submitted that these provisions were only “technically applicable” in the present case and that the reference to “harm done to the community” had no real application, and was not deserving of any weight.

Submissions of the Crown

1. [140]

   The Crown argued that the submissions advanced in support of ground 2 represented, to a greater or lesser extent, an attempt by counsel for an applicant to advance, on appeal, submissions which were either not made to his Honour, or which were expressly contrary to concessions which were made by counsel appearing for the applicant at that time.

2. [141]

   The Crown further submitted that although a number of specific submissions had been put to this Court on behalf of the applicant, the gravamen of this particular ground was that his Honour had erred in his assessment of the objective seriousness of the offending. The Crown submitted that this Court would be slow to intervene in respect of any such assessment.

Consideration

1. [142]

   Before dealing with the specific submissions advanced on behalf of the applicant in support of this ground, it is appropriate to make two preliminary observations.

2. [143]

   Firstly, as I have already noted at [121], an appeal before this Court is not an occasion for the revision and reformulation of the case presented below. This Court will not lightly entertain arguments that could have been put, but were not advanced, on a plea, and will have even greater reluctance to entertain arguments that seek to resile from concessions made at first instance, or which amount to a contradiction of submissions previously made: Zreika (supra) at [81] per Johnson J citing Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13]; [18]; Bayram v R [2012] VSCA 6 at [28]-[29].

3. [144]

   Secondly, it has been observed that the characterisation of the degree of objective seriousness of an offence is a matter “classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts.” In those circumstances, this Court will be very slow to determine such matters for itself, or to set aside a judgment made at first instance by a sentencing judge exercising a broadly based discretion. The question is whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was one which was open: Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37].

4. [145]

   Having regard to those observations, I turn to consider the specific submissions considered in support of this ground.

5. [146]

   As to the first submission, s. 21A(2)(l) of the Sentencing Act provides that it will be an aggravating factor on sentence if:

6. [147]

   Section 21A(2)(l) is concerned with the weakness of a particular class of victim: Betts v R [2015] NSWCCA 39 per RS Hulme AJ at [29] (Meagher JA and Hidden J agreeing). It is the fact of a victim’s vulnerability which aggravates the offence. The fact that there may not have been evidence to support a conclusion that the deceased’s vulnerability contributed to her death is not to the point. The engagement of s 21A(2)(l) does not depend upon there being a causal connection (in a case of murder) between vulnerability and death.

7. [148]

   As to the second submission, as Hoeben CJ at CL has pointed out (at [13]), the applicant used a statue to inflict significant blunt force trauma to the victim’s face, and used a knife to inflict a large number of wounds, including the fatal wound. In these circumstances, and as a matter of common sense, the use of two weapons to inflict multiple injuries necessarily aggravated the seriousness of the offence.

8. [149]

   As to the third submission, s. 21A(2)(eb) of the Sentencing Act provides that it will be an aggravating factor on sentence if the offending:

9. [150]

   In the present case, his Honour reviewed the relevant authorities and concluded (at [31]) that it was inappropriate to treat the fact that the offending had been committed in the deceased’s home as an aggravating factor. His Honour did, however, have regard to the fact that the applicant was an invitee into the deceased’s home, that this involved an element of trust, and that the deceased was entitled to feel safe, and be safe in her own home. His Honour expressly acknowledged that the distinction between that approach and that mandated by s. 21A(2)(eb) of the Sentencing Act was a fine one. What is clear, is that his Honour did not regard these circumstances as aggravating factors.

10. [151]

    Further, his Honour’s observation (at [31]) that the deceased was unlikely to have been able to flee the attack, was one which was clearly open on the evidence, and which was relevant to the assessment of the objective seriousness of the offending.

11. [152]

    As to the fourth submission, his Honour noted (at [32]) that counsel appearing for the applicant on sentence had expressly conceded that the mistreatment of the deceased’s corpse increased the objective seriousness of the offence. His Honour accepted that concession, which was properly made and consistent with the authority: Panetta v R [2016] NSWCCA 85 at [64] and the authorities cited therein. The fact that there was no evidence that the offender’s actions in mistreating the deceased’s corpse were prompted by any emotional, vengeful or ritualistic purpose did not mean that such actions did not aggravate his offending. Moreover, it is clear from his Honour’s concluding words at [33] that he carefully had regard to the fact that the motivation of destroying evidence was also an aggravating feature of the arson offences.

12. [153]

    As to the fifth submission, his Honour recorded (at [43]) that counsel appearing for the applicant had conceded that the harm done to the deceased’s family was an aspect of harm done to the community and that it was appropriate to take that harm into account when determining sentence. Again, that was a concession which was both appropriate and consistent with authority. In R v Halloun [2014] NSWSC 1705 McCallum J observed, in reference to s. 28(4) of the Sentencing Act that:

13. [154]

    Similarly, in R v Do (No 4) [2015] NSWSC 512 Davies J observed:

14. [155]

    In R v Pluis [2015] NSWSC 320, Johnson J had said (at [103]):

15. [156]

    None of the submissions advanced on behalf establish that his Honour erred in his assessment of the objective seriousness of the offending. For these reasons, this ground is not made out.

Conclusion

1. [157]

   In respect of the application for leave to appeal against sentence I propose the following orders: